LIES, DAMN LIES, AND FEDERAL INDIAN LAW: THE ETHICS OF CITING RACIST PRECEDENT IN CONTEMPORARY FEDERAL INDIAN LAW
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LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
LIES, DAMN LIES, AND FEDERAL INDIAN LAW:
THE ETHICS OF CITING RACIST PRECEDENT IN
CONTEMPORARY FEDERAL INDIAN LAW
ADAM CREPELLE¥
ABSTRACT
Federal Indian law is rooted in history. Present day Indian law practitioners
routinely cite cases from the 1800s. Most of the jurisprudence dealing with Indians
in the 1800s is flagrantly racist and based upon grossly erroneous stereotypes
about Indians. Contemporary Indian rights continuously erode because federal
Indian law remains stuck in the unjust past. This is problematic because it
perpetuates a racist legacy but also because lawyers are bound by ethical rules.
Lawyers are forbidden from propagating untruths, acting in a manner that
discriminates based on race or ethnicity, and engaging in conduct that is
prejudicial to the administration of justice. Accordingly, lawyers’ ethical
obligations are incompatible with contemporary federal Indian law. This Article
offers recommendations on how to purge the racism from federal Indian law.
∞
Adam Crepelle, Associate Professor, Southern University Law Center; Managing Fellow,
Native American Law and Policy Institute; Associate Justice, Court of Appeals for the Pascua Yaqui
Tribe. I would like to thank SULC for providing me with a summer research grant during the summer
of 2019. I would like to thank Joseph Austin, Alison Geisler, Rebecca Henry, and Melissa Tatum
for their advice on this article. I would like to thank the NYU RLSC editors for their hard work and
helpful comments on this article.
529LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
530 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 44:529
I. INTRODUCTION ............................................................................................... 530
II. LEGAL ETHICS: PAST AND PRESENT ............................................................. 533
A. The Development of Legal Ethics ............................................................ 536
B. The MRPC and the Truth.......................................................................... 538
C. Judicial Ethics ........................................................................................... 539
III. LEGAL ETHICS AND FEDERAL INDIAN LAW JURISPRUDENCE—THERE MAY
BE A PROBLEM.............................................................................................. 540
A. Johnson v. M’Intosh: Problematic Perpetuation of Doctrine of Discovery
.................................................................................................................. 541
B. Cherokee Cases: Diminished Sovereignty and Creation of the “Trust”
Relationship .............................................................................................. 544
C. U.S. v. Rogers: Outright Racism and Discrimination ............................... 547
D. Ex parte Crow Dog and Kagama: Imposing “Justice” ............................. 549
IV. LIES AND RACISM ADMITTED, BUT THAT DOES NOT AFFECT PRECEDENT 553
V. OLIPHANT AND “COMMON NOTIONS OF THE DAY” ...................................... 556
A. Deceptive Reasoning ................................................................................ 559
B. Suppressing the Truth ............................................................................... 561
C. An Antiquated Lens .................................................................................. 563
VI. IS IT ETHICAL TO CITE FACTUALLY WRONG AND RACIST CASES? ............ 567
VII. POSSIBLE SOLUTIONS................................................................................. 572
A. Education Gap........................................................................................... 572
B. Legal Ethical Regulation........................................................................... 574
C. Congressional Action ................................................................................ 577
VIII. CONCLUSION............................................................................................. 578
I.
INTRODUCTION
In Dred Scott v. Sandford, Chief Justice Taney infamously wrote,
They had for more than a century before been regarded as beings
of an inferior order, and altogether unfit to associate with the white
race, either in social or political relations; and so far inferior, that
they had no rights which the white man was bound to respect; and
that the negro might justly and lawfully be reduced to slavery for
his benefit.1
Although the case was effectively superseded by the passage of the Thirteenth
and Fourteenth Amendments,2 aspects of the decision remain binding law and
1. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857), superseded by constitutional
amendment, U.S. CONST. amend. XIV.
2. U.S. CONST. amends. XIII, XIV.LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
2021] LIES, DAMN LIES, AND FEDERAL INDIAN LAW 531
have continuing influence.3 However, most lawyers and judges would never
dream of citing Dred Scott. When Kansas Solicitor General Stephen McAllister
cited Dred Scott in support of the proposition that the Declaration of Independence
is a values statement rather than law, public criticism forced the state Attorney
General to quickly withdraw the brief and apologize for the citation.4 The case’s
racist rancor runs roughshod over any precedential value it may carry. Dred Scott
serves as a reminder of how far the country has come. Indeed, a war was fought,
and the Constitution amended, to cure its ill effects.5
Unfortunately, change has been far slower to come in the realm of federal
Indian6 law. As but one example, Lone Wolf v. Hitchcock,7 the American Indian
Dred Scott,8 not only remains binding law but is cited without generating
3. Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 CHI-KENT
L. REV. 49, 73 (2007); Lewis H. LaRue, The Continuing Presence of Dred Scott, 42 WASH. & LEE
L. REV. 57, 58 (1985); see Cass R. Sunstein, Constitutional Myth-Making: Lessons from the Dred
Scott Case, OCCASIONAL PAPERS FROM L. SCH. U. CHI., 1996, at 1, 9 (noting the importance of Dred
Scott as “the birthplace of the idea of ‘substantive due process’”).
4. P.R. Lockhart, It’s 2016 and Kansas Approvingly Cited Dred Scott in an Abortion Case. It
Was Not a Good Idea., MOTHER JONES (Oct. 20, 2016), https://www.motherjones.com/politics/2016/
10/kansas-retracts-dred-scott-citation-supporting-anti-abortion-law/ [https://perma.cc/MQ9A-
MNGB]; Bryan Lowry, Attorney General Schmidt Apologizes for State’s Citation of Dred Scott
Case, WICHITA EAGLE (Oct. 20, 2016, 6:30 AM), https://www.kansas.com/news/politics-
government/article109166717.html [https://perma.cc/74YQ-GGMD]; Debra Cassens Weiss,
Kansas Attorney General Apologizes for Dred Scott Citation in Abortion Brief, ABA JOURNAL (Oct.
20, 2016, 8:01 AM), http://www.abajournal.com/news/article/kansas_attorney_general_apologizes
_for_dred_scott_citation_in_abortion_brie [https://perma.cc/JJ2Z-JFBZ].
5. Sarah Bell, Dred Scott v. Sandford (1857), CIVIL WAR ON THE WESTERN BORDER,
http://www.civilwaronthewesternborder.org/encyclopedia/dred-scott-v-sandford-1857
[https://perma.cc/XA8X-6SJN] (last visited Feb. 15, 2020); Dred Scott Decision, THIS DAY IN HIST.,
https://www.history.com/this-day-in-history/dred-scott-decision [https://perma.cc/3YR2-MJ2E]
(last visited Feb. 15, 2020); Dred Scott v. Sandford, OHIO HIST. CENT.,
http://www.ohiohistorycentral.org/w/Dred_Scott_v._Sandford, [https://perma.cc/2GP9-ERSS] (last
visited Feb. 15, 2020).
6. This Article uses the term “Indian” rather than “Native American” to denote the indigenous
peoples of the United States. “Indian” is used because it is the proper legal term (see, e.g., 25 U.S.C
§§ 1-5636 (2012)), and “Indian” is the preferred term of Indians themselves. See, e.g., MISS. BAND
CHOCTAW INDIANS, http://www.choctaw.org/ [https://perma.cc/D88K-8ZAH] (last visited Feb. 15,
2020); POARCH CREEK INDIANS, http://pci-nsn.gov/westminster/index.html [https://perma.cc/UY24-
D8MJ] (last visited Feb. 26, 2020); SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY,
https://www.srpmic-nsn.gov/ [https://perma.cc/5S9D-6Q4G] (last visited Feb. 28, 2020); SOUTHERN
UTE INDIAN TRIBE, https://www.southernute-nsn.gov/ [https://perma.cc/C7DB-XBFS] (last visited
Feb. 26, 2020).
7. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
8. Sioux Nation of Indians v. United States, 601 F.2d 1157, 1173 (Ct. Cl. 1979), aff’d, 448
U.S. 371 (1980) (“The day Lone Wolf was handed down, January 5, 1903, might be called one of
the blackest days in the history of the American Indian, the Indians’ Dred Scott decision.”) (Nichols,
J., concurring); Angela R. Riley, The Apex of Congress’ Plenary Power over Indian Affairs: The
Story of Lone Wolf v. Hitchcock, in INDIAN LAW STORIES 189, 189 (Carole Goldberg, Kevin K.
Washburn & Philip P. Frickey eds., 2011) (citing Senator Matthew Quay (R. Pennsylvania), U.S.
Congressional Record 2028 (1903): “It [Lone Wolf] is a very remarkable decision. It is the Dred
Scott decision No. 2, except that in this case the victim is red instead of black. It practically inculcatesLIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
532 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 44:529
controversy today;9 in fact, it was cited during the Supreme Court’s most recent
term.10 Jurisprudence loaded with grotesque 19th-century racist stereotypes and
factual errors about American Indians remains valid precedent.11 Even a case
wherein the Supreme Court explicitly declares a law regulating Indian Affairs
unconstitutional but upholds the law because Indians are a dependent, weak, and
helpless people continues to be cited in contemporary decisions.12
Attorneys in the present day United States routinely use cases based on white
supremacy to argue against American Indian rights, and judges unblinkingly cite
these opinions in federal Indian law cases.13 Furthermore, many of the restrictions
placed upon tribes by Congress are rooted in antiquated jurisprudence.14 Federal
Indian law jurisprudence is often nothing more than racism cloaked as law. This
begs the question: Is federal Indian law, as it is currently practiced, ethical? Can
lawyers comply with their ethical obligations while simultaneously citing overtly
racist, factually erroneous cases in the field of federal Indian law? This Article
will demonstrate that much of the current practice of federal Indian law is in fact
incompatible with modern standards of legal ethics.
the doctrine that the red man has no rights which the white man is bound to respect, and that no
treaty or contract made with him is binding. Is that not about it?”).
9. E.g., Thompson v. United States, No. 3:18-CV-00147-RCJ-WGC, 2018 WL 5833062, at
*2 (D. Nev. Nov. 7, 2018) (“Congress has plenary power over the Indian tribes, Lone Wolf v.
Hitchcock, 187 U.S. 553, 565 (1903)”); Pueblo of Jemez v. United States, 350 F. Supp. 3d 1052,
1102 n.27 (D.N.M. 2018) (“The Supreme Court further stated that Congress’ decision to take Tribal
property is a political question not subject to judicial review. See Lone Wolf v. Hitchcock, 187 U.S.
at 565.”); Munoz v. Barona Band of Mission Indians, No. 17-CV-2092-BAS-AGS, 2018 WL
1245257, at *3 (S.D. Cal. Mar. 8, 2018) (citing to Lone Wolf in support of the proposition that
Congress has the power to modify or extinguish tribal sovereignty).
10. McGirt v. Oklahoma, S. Ct. 2452, 2462 (2020) (“This Court long ago held that the
Legislature wields significant constitutional authority when it comes to tribal relations, possessing
even the authority to breach its own promises and treaties. Lone Wolf v. Hitchcock, 187 U. S. 553,
566–568 (1903).”).
11. See infra Parts III–V.
12. United States v. Kagama, 118 U.S. 375, 383–84 (1886); see, e.g., Window Rock Unified
Sch. Dist. v. Reeves, 861 F.3d 894, 909 (9th Cir. 2017), as amended (Aug. 3, 2017) (“But ‘Indian
tribes are . . . no longer “possessed of the full attributes of sovereignty.”’” (citing United States v.
Wheeler, 435 U.S. 313, 323) (quoting Kagama, 118 U.S. at 381)); United States v. Lara, 541 U.S.
193, 206 (2004); Nevada v. Hicks, 533 U.S. 353, 363–64 (2001).
13. Philip P. Frickey, Doctrine, Context, Institutional Relationships, and Commentary: The
Malaise of Federal Indian Law through the Lens of Lone Wolf, 38 TULSA L. REV. 5, 5 (2002) (“Most
educated Americans have heard of Dred Scott. In contrast, only a small segment even of the
American legal community is aware of Lone Wolf.”).
14. See generally Adam Crepelle, Decolonizing Reservation Economies: Returning to Private
Enterprise and Trade, 12 J. BUS. ENTREPRENEURSHIP & L. 413 (2019) [hereinafter Crepelle,
Decolonizing Reservation Economies]; Adam Crepelle & Walter E. Block, Property Rights and
Freedom: The Keys to Improving Life in Indian Country, 23 WASH. & LEE J. C.R. & SOC. JUST. 315,
318–19 (2017); Lance Morgan, The Rise of Tribes and the Fall of Federal Indian Law, 49 ARIZ. ST.
L.J. 115, 115 (2017) (acknowledging that one reality of Indian law is “a set of rules established over
the last two hundred years by the federal court system and the United States Congress . . . which
have combined to place tribes in a tight box of restrictions and limitations”).LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
2021] LIES, DAMN LIES, AND FEDERAL INDIAN LAW 533
In Part II, this Article first delves into the development of legal ethics and
then explores the contemporary ethical obligations of lawyers and judges relating
to truth, equality, and justice. As this Article demonstrates, these obligations are
highly salient to federal Indian law jurisprudence. Part III discusses six canonical
Indian law cases. Based both in impermissible racial stereotypes and a doctrine of
white supremacy, this case law is overtly racist. However, it remains binding law.
Part IV discusses two Indian law cases that the United States Solicitor General has
admitted are based upon lies and racist stereotypes; nevertheless, the cases remain
binding precedent. Part V examines the Supreme Court’s scurrilous Oliphant v.
Suquamish Tribe opinion and unpacks both the deficiencies in its reasoning and
the devastating consequences of the decision. Part VI poses the question: Is it
ethical to cite cases that are factually wrong and racist? Applying the ethical
standards which govern the legal profession to the racist and erroneous opinions
still relied upon in federal Indian law, this Article firmly concludes that this
practice is unethical. Part VII offers three solutions to help remove the racism from
Indian law. The primary recommendations of this Article are to improve education
on Indian law and history, to impose consequences for those who violate legal
ethical guidelines with their continued reliance on this precedent, and to take
congressional action.
II.
LEGAL ETHICS: PAST AND PRESENT
Although the Model Rules of Professional Conduct (MRPC) are relatively
new, legal ethics are far from novel. In Part II.A, this Article traces the
development of legal ethics from antiquity to the American Bar Association’s
(ABA’s) MRPC. As model rules, the ABA MRPC are not binding on lawyers.15
However, each state bar association establishes its own ethical guidelines for
lawyers licensed to practice within the state,16 and most state bar associations have
adopted the ABA MRPC or rules largely identical to them.17 It should also be
15. United States v. Straker, 258 F. Supp. 3d 151, 156 (D.D.C. 2017) (“However, this ABA
Opinion is not binding on this Court, interpreted Model Rule 1.6 (which is different than D.C. Rule
1.6) and is contrary to the controlling ethics opinion from this jurisdiction.”); Melo v. United States,
825 F. Supp. 2d 457, 463 n.2 (S.D.N.Y. 2011) (“Moreover, an ABA ethics opinion is not binding on
this Court.”); Dunlap v. United States, No. 4:09-CR-00854-RBH-1, 2011 WL 2693915, at *1 n.4
(D.S.C. July 12, 2011) (“First and foremost, ABA opinions are not binding authority on this court.”);
In re Meador, 968 S.W.2d 346, 349 n.1 (Tex. 1998) (“While the [ABA’s Committee on Ethics and
Professional Responsibility’s] opinions are often cited as persuasive authority by state disciplinary
bodies, the opinions do not bind those bodies.”).
16. Additional Legal Ethics and Professional Responsibility Resources, AM. BAR ASS’N,
https://www.americanbar.org/groups/professional_responsibility/resources/links_of_interest/
[https://perma.cc/8JG5-RZUH] (last visited Feb. 29, 2020); Peter A. Joy, Making Ethics Opinions
Meaningful: Toward More Effective Regulation of Lawyers’ Conduct, 15 GEO. J. LEGAL ETHICS 313,
330 (2002) (noting that there are ethics rules adopted by each jurisdiction, usually based on the ABA
Model Rules).
17. See Geri L. Dreiling, Choosing Up Sides, ABA J. (May 1, 2007, 9:22 AM),LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
534 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 44:529
noted that in addition to rules set by state bar associations, several other rules
govern lawyers’ conduct.18 Part II.B then summarizes the key ethical duties for
attorneys within the ABA MRPC. Lastly, Part II.C outlines the standards of
honesty, justice, and impartiality which the Model Code of Judicial Conduct
(MCJC) establishes for the judiciary.
A. The Development of Legal Ethics
Legal ethics can be traced as far back as ancient Greece and Rome.19
Foremost amongst the Roman lawyer’s duties was to speak only that which the
lawyer believed to be true.20 The fall of the Roman Empire and the onset of the
Dark Ages caused the significance of lawyers, as well as legal ethics, to fade.21
However, a code of legal ethics began to emerge in England during the 13th
century when advocates were required to take an oath swearing, among other
things, to be truthful during litigation.22 By 1402, English lawyers were required
http://www.abajournal.com/magazine/article/choosing_up_sides [https://perma.cc/M6SU-NRPN]
(“The ABA Model Rules serve as the basis for most state ethics codes that directly govern
lawyers.”); Eugene Volokh, A Speech Code for Lawyers, Banning Viewpoints that Express ‘Bias,’
Including in Law-related Social Activities, WASH. POST (Aug. 10 2016, 5:53 AM),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/10/a-speech-code-for-
lawyers-banning-viewpoints-that-express-bias-including-in-law-related-social-activities-
2/?noredirect=on&utm_term=.45177f4a8900 [https://perma.cc/HD7J-YXYP] (noting that the
MRPC is “an influential document that many states have adopted as binding on lawyers in their
state”); Legal Ethics & Professional Responsibility Research: ABA Codes, NYU LAW,
https://nyulaw.libguides.com/c.php?g=773845&p=5552013 [https://perma.cc/BBT5-QFYP] (last
updated Mar. 27, 2018) (“Most states have adopted the Model Rules, though some with
modifications. California is currently the only state that has not adopted some version of the Model
Rules.”).
18. E.g., 15 U.S.C. § 7245 (2012); 17 C.F.R. § 205.1 (2011); FED. R. CIV. P. 11; FED. R. APP.
P. 46.
19. Carol Rice Andrews, Standards of Conduct for Lawyers: An 800-Year Evolution, 57 SMU
L. REV. 1385, 1389 n.25 (2004) [hereinafter Andrews, Standards of Conduct for Lawyers] (“Roman
laws, from the third century, addressed a variety of abuses” within the legal profession); Louise L.
Hill, Solicitation by Lawyers: Piercing the First Amendment Veil, 42 ME. L. REV. 369, 370 (1990)
(“Both lawyers and proscriptions against solicitation have their roots in ancient Greek and Roman
law.”); Professional Responsibility: History, LAW LIBR.-AM. L. AND LEGAL INFO.,
https://law.jrank.org/pages/9481/Professional-Responsibility-History.html [https://perma.cc/F8LH-
VYMN] (last visited Feb. 28, 2020).
20. Andrews, Standards of Conduct for Lawyers, supra note 19, at 1393; see also John D.
King, Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal
Defendant, 58 AM. U. L. REV. 207, 219 (2008) (“Like the lawyer’s duty of candor toward the
tribunal, the concept of zeal in the lawyer’s representation of her client has antecedents in early
Roman law.”).
21. Andrews, Standards of Conduct for Lawyers, supra note 19, at 1390 (“After the fall of the
Roman empire, the role of lawyers is obscured in the ‘dark ages.’”); A Brief Guide to the History of
Lawyers, SMOKEBALL (May 8, 2018), https://www.smokeball.com/blog/brief-guide-to-the-history-
of-lawyers/ [https://perma.cc/4YAU-Q526] (“Lawyers in medieval times found themselves
struggling to make a living as the legal profession collapsed in the western world.”); Professional
Responsibility: History, supra note 19.
22. Andrews, Standards of Conduct for Lawyers, supra note 19, at 1393.LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
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to take an oath to “do no falsehood.”23 French legal ethics were evolving at the
same rate as the English, and by 1231, French ecclesiastical lawyers were required
to be truthful and maintain the honor of the court during the course of litigation.24
Though honesty before tribunals has remained a hallmark of French and English
legal ethics over the centuries, the legal profession in both nations also developed
other standards to enhance the profession.25
Lawyers in colonial America were held in ill repute.26 Virginia thought so
little of lawyers that it outright prohibited lawyers for periods of time while
imposing extreme regulations on lawyers at other times.27 In 1732, Virginia began
to follow the practice of other colonies and required lawyers to swear an oath that:
“You shall do no falsehood, nor consent to any to be done in the court; and if you
do know of any to be done you shall give notice thereof to the justices of the court
that it may be reformed…”28 The oath, inspired by the English oath taken for
centuries, formalized a duty of honesty in litigation.29 England’s legal influence
extended to colonial lawyers’ views of rights; consequently, colonial lawyers were
vital to America’s push for independence.30
Legal ethics in the United States began to take their current shape during the
19th century.31 In 1881, Thomas Goode Jones first proposed the idea of
23. Id. at 1404; Richard Dooling, First, Tell No Lies: A Hippocratic Oath for Lawyers?,
LINCOLN BAR ASS’N 1, 2 (2018), https://www.lincolnbarassociation.com/wp-content/uploads/
2018/11/Presentation-First-Tell-No-Lies-A-Hippocractic-Oath-For-Lawyers.pdf
[https://perma.cc/Z5F6-86UN].
24. Andrews, Standards of Conduct for Lawyers, supra note 19, at 1410.
25. Id. at 1409, 1411; see generally John Leubsdorf, On the History of French Legal Ethics,
8 U. CHI. L. SCH. ROUNDTABLE 341 (2001).
26. Andrews, Standards of Conduct for Lawyers, supra note 19, at 1413; Kevin L. Colosimo
& Daniel P. Craig, A Brief History of American Legal Ethics, Colonial America to 1908, 37 ENERGY
& MIN. L. INST. § 1.02 (2017); William T. Ellis & Billie J. Ellis, Beyond the Model Rules: Aristotle,
Lincoln, and the Lawyer’s Aspirational Drive to an Ethical Practice, 26 T.M. COOLEY L. REV. 591,
592 (2009).
27. Andrews, Standards of Conduct for Lawyers, supra note 19, at 1414; Anton-Hermann
Chroust, The Legal Profession in Colonial America, 34 NOTRE DAME L. REV. 44, 45 (1958)
(“Virginia displayed a violent and prolonged aversion to the lawyer.”).
28. Chroust, supra note 27, at 49; see also Andrews, Standards of Conduct for Lawyers, supra
note 19, at 1415 (noting that “do no falsehood” oaths were some of the most common regulations
amongst lawyers in the colonial era).
29. Andrews, Standards of Conduct for Lawyers, supra note 19, at 1422 (“Litigation candor
and fairness obligations were expressed in the ‘do no falsehood’ oath, the procedural rules and
misconduct statutes.”).
30. Colosimo & Craig, supra note 26, at 7 (“The American Revolution succeeded in great part
due to the rise of a professionally trained class of lawyers . . .”); Harlan F. Stone, The Public Influence
of the Bar, 48 HARV. L. REV. 1, 13 (1934); Edmund Burke, Speech on Conciliation with the Colonies,
(Mar. 22, 1775), in THE ESSENTIAL BILL OF RIGHTS: ORIGINAL ARGUMENTS AND FUNDAMENTAL
DOCUMENTS 170, 173 (Gordon Lloyd & Margie Lloyd eds., 1998).
31. Carol Rice Andrews, Ethical Limits on Civil Litigation Advocacy: A Historical
Perspective, 63 CASE W. RES. L. REV. 381, 401 (2012) [hereinafter Andrews, Ethical Limits];
Andrews, Standards of Conduct for Lawyers, supra note 19, at 1423–24 (noting that nineteenth
century legal educators and reformers “began a new era in American legal ethics”); Walter B. Jones,LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
536 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 44:529
formulating a Code of Legal Ethics to elevate the standards of professionalism in
the field of law.32 During a discussion of the proposed Code, an Alabama senator
stated, “We are not adopting rules for our guidance here merely because certain
practices have become obsolete in the land; we are adopting what we consider a
sound code of morals for the practice of the law.”33 Jones’s efforts resulted in the
Alabama State Bar Association adopting the first ever Code of Legal Ethics in the
United States in 1887.34 Several states soon followed Alabama’s lead.35
Inspired by Alabama’s Code of Legal Ethics, the ABA adopted the Canons
of Professional Ethics in 1908.36 The Canons regulated many aspects of a lawyer’s
conduct; however, the Canons emphasized that nothing is more harmful to the
reputation of the legal profession than “the false claim.”37 Accordingly, the
Canons demanded candor and fairness from attorneys.38 Misquoting the law and
misrepresenting facts were shunned under the Canons.39 Nevertheless, the Canons
did not cure the public’s distrust of lawyers40 as Justice Harlan Stone claimed in
1934 that socio-industrial changes in the twentieth century had “tainted it [the
legal profession] with the morals and manners of the market place in its most anti-
social manifestations.”41 He called for lawyers to make a “moral readjustment.”42
Several other commentators raised similar ethical concerns regarding the
adequacy of the Canons.43
Canons of Professional Ethics, Their Genesis and History, 7 NOTRE DAME L. REV. 483, 494 (1932)
(noting the influence of Judge Sharswood’s nineteenth century essay on Alabama’s adoption of the
first Code of Legal Ethics); Louis Parley, A Brief History of Legal Ethics, 33 FAM. L.Q. 637, 637–
39 (1999).
32. John A. Eidsmoe, Warrior, Statesman, Jurist for the South: The Life, Legacy, and Law of
Thomas Goode Jones, 5 JONES L. REV. 51, 145 (2001); Jones, Canons of Professional Ethics, supra
note 31, at 483–84.
33. Jones, supra note 31, at 489.
34. Id. at 493; Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 454 n.11 (1978); Gaylard v.
Homemakers of Montgomery, Inc., 675 So. 2d 363, 369 (Ala. 1996).
35. Eidsmoe, supra note 32, at 146.
36. MODEL CODE OF PRO. RESP. Preface (AM. BAR ASS’N 1980) (noting that the original
Canons of Professional Ethics “were based principally on the Code of Ethics adopted by the Alabama
State Bar Association in 1887”); Andrews, Ethical Limits, supra note 31, at 420; Jones, supra note
31, at 494–96.
37. CANONS OF PROF’L ETHICS Canon 15 (AM. BAR ASS’N 1908).
38. Id. at Canon 22.
39. Id.
40. Stone, supra note 30, at 3 (asserting that contemporary “lay dissatisfaction with lawyers”
went beyond the typical “chronic distrust of the lawyer class”).
41. Id. at 6–7.
42. Id. at 10.
43. Melissa Mortazavi, The Cost of Avoidance: Pluralism, Neutrality, and the Foundations of
Modern Legal Ethics, 42 FLA. ST. U. L. REV. 151, 157 (2014) (“Critiques of the Canons were strong
and mounting by the 1960s.”).LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
2021] LIES, DAMN LIES, AND FEDERAL INDIAN LAW 537
Lewis F. Powell, Jr., who would later serve on the Supreme Court of the
United States, answered Justice Stone’s call for reform.44 Powell was elected
ABA President in 1964 and pushed for a complete reform of legal ethics.45 He
claimed, “The Canons of Ethics, adopted in 1908, had well served their purpose
for more than half a century. But the need for reevaluation and revision was
overdue.”46 The goal of the overhaul was not to toss out the 1908 Canons; rather,
the purpose was to transmute their essence into a contemporary form.47 In their
1908 manifestation, Powell asserted that the Canons were unenforceable.48 Thus,
the ABA’s House of Delegates created a Special Committee to recommend
revisions to the then-current Canons.49 Nearly five years after the creation of the
Committee, the ABA House of Delegates adopted the Model Code of Professional
Responsibility (MCPR) in 1969.50
The MCPR was successful in that it was adopted by the majority of state and
federal jurisdictions soon after its enactment.51 Nevertheless, the ABA created a
committee, the Commission on Evaluation of Professional Standards, to further
study legal ethics in 1977. The committee concluded that mere reforms would not
suffice to properly govern the ethical situations faced by lawyers.52 The committee
composed the Model Rules of Professional Conduct (MRPC), which the ABA
adopted in 1983.53 The MRPC have since been amended over a dozen times;54
however, the essence remains unchanged.
44. Lewis F. Powell, Jr., OYEZ, https://www.oyez.org/justices/lewis_f_powell_jr
[https://perma.cc/TQX6-7Q6T] (last visited Feb. 27, 2020).
45. Id.
46. Lewis F. Powell, Jr., Supreme Court Justice, Evaluation of Ethical Standards, Address at
ABA House of Delegates (Aug. 12, 1969), in WASH. & LEE U. SCH. L. SCHOLARLY COMMONS 1,
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1007&context=powellspeeches
[https://perma.cc/P2GA-M27S].
47. Id. at 4–5.
48. Id. at 5.
49. MODEL CODE OF PRO. RESP., supra note 36.
50. Id.; The History of the Rules of Disciplinary Procedure in Washington: Selected Historical
Highlights, AM. BAR ASS’N 2, https://www.americanbar.org/content/dam/aba/administrative
/professional_responsibility/38th_conf_session15_history_of_the_wa_rules_of_disciplinary_proce
dure.pdf [https://perma.cc/89T3-TUNK] (last visited Feb. 24, 2020).
51. MODEL RULES OF PRO. CONDUCT Preface (AM. BAR ASS’N 2020),
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_prof
essional_conduct/model_rules_of_professional_conduct_preface/ (“The Model Code was adopted
by the House of Delegates on August 12, 1969, and subsequently by the vast majority of state and
federal jurisdictions.”).
52. Id.
53. Id.
54. Id. (“Between 1983 and 2002, the House amended the Rules and Comments on fourteen
different occasions.”).LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
538 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 44:529
B. The MRPC and the Truth
The Preamble of the MRPC begins by stating lawyers have a “special
responsibility for the quality of justice.”55 It notes that lawyers engage in
adversarial dealings on behalf of their clients; nonetheless, a lawyer is required to
be honest in dealings with others.56 The MRPC suggest a lawyer should be more
than honest. The MRPC encourage lawyers to elevate the justice system—to
reform the law, be aware of and address deficiencies in law, and promote the
equitable administration of the law.57 Hence, the MRPC state that lawyers should
aspire “to improve the law.”58 The MRPC “provide a framework” rather than a
definitive list of moral and ethical guidelines.59
Though the MRPC are considered largely amoral in their design,60 honesty
and truth-seeking make appearances throughout the MRPC. Indeed, finding the
truth is a paramount objective of the American legal system.61 Lawyers are to
zealously represent their clients;62 nonetheless, a lawyer must ground her client’s
case in both fact and law.63 Lawyers are expressly prohibited from engaging in
false or deceptive behavior64 and cannot counsel a client to engage in fraudulent
behavior.65 Thus, lawyers must correct incorrect information when lawyers
become aware of information’s falsehood.66 A lawyer may be held responsible for
a false statement by mere affirmation of the false statement or incorporating the
false statement into her argument if the lawyer knows the statement is factually
incorrect.67 Even an omission can violate a lawyer’s duty to the truth.68
55. MODEL RULES OF PRO. CONDUCT Preamble & Scope ¶ 1 (AM. BAR ASS’N 2020)
[hereinafter MRPC, P&S], https://www.americanbar.org/groups/professional_responsibility
/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_pream
ble_scope/ [https://perma.cc/3BBZ-MXTN].
56. Id. at ¶ 2.
57. Id. at ¶ 6.
58. Id. at ¶ 7.
59. Id. at ¶ 16.
60. Benjamin H. Barton, The ABA, the Rules, and Professionalism: The Mechanics of Self-
Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach of the Canons, 83
N.C. L. REV. 411, 473 (2005).
61. See, e.g., Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981) (“[Our] system assumes that
adversarial testing will ultimately advance the public interest in truth and fairness.”); Mackey v.
Montrym, 443 U.S. 1, 13 (1979) (“[O]ur legal tradition regards the adversary process as the best
means of ascertaining truth and minimizing the risk of error . . .”); Sharon Dolovich, Ethical
Lawyering and the Possibility of Integrity, 70 FORDHAM L. REV. 1629, 1634 (2002) (noting that the
“purpose of any justice system” is the securing of certain values, including truth).
62. MRPC, P&S, supra note 55, at ¶ 9.
63. MODEL RULES OF PRO. CONDUCT r. 3.1 (AM. BAR ASS’N 2020).
64. Id. at r. 8.4(c), r. 4.1.
65. Id. at r. 1.2(d).
66. Id. at r. 3.3, r. 3.3 cmt. 2 (“[T]he lawyer must not allow the tribunal to be misled by false
statements of law or fact or evidence that the lawyer knows to be false.”).
67. Id. at r. 4.1 cmt. 1.
68. Id.LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
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Lawyers are barred from engaging “in conduct that is prejudicial to the
administration of justice;”69 consequently, lawyers also cannot behave in a
manner that discriminates on the basis of race, sex, or national origin.70 The
comments to the MRPC note that discrimination “undermine[s] confidence in the
legal profession and the legal system.”71 Lawyers are expressly authorized to
consider moral, social, and political factors when advising clients.72 Comments in
the MRPC acknowledge that “moral and ethical considerations” are highly
relevant to the application of the law.73 Lawyers can seek to overturn existing law
provided there is a “good faith argument” to overturn it.74 Therefore, provided
they have a reasonable basis for their argument, lawyers are empowered to
affirmatively work towards overturning unethical precedent. Additionally, the
comments note that lawyers who are public officials and trustees are held to
heightened ethical standards.75
C. Judicial Ethics
Like attorneys, judges are also bound by ethical standards.76 The ABA Model
Code of Judicial Conduct (MCJC) recognizes that a fair and impartial judiciary is
essential to the United States justice system.77 Accordingly, judges are obligated
to “strive to maintain and enhance confidence in the legal system.”78 Judges must
apply the law impartially and must avoid even the appearance of impropriety.79
Any judicial conduct that undermines the impartiality of a court subverts public
confidence in the legal system.80
In the course of judicial duties, judges are strictly prohibited from using words
that intimate prejudice based upon race, gender, religion, or national origin.81
Judges are similarly forbidden from harassing others based upon the noted
characteristics, and harassment includes the use of words that demonstrate
antipathy toward a person on such bases.82 Likewise, judges must prohibit lawyers
69. Id. at r. 8.4(d).
70. Id. at r. 8.4(g).
71. Id. at r. 8.4 cmt. 3.
72. Id. at r. 2.1.
73. Id. at r. 2.1 cmt. 2 (“It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical
considerations impinge upon most legal questions and may decisively influence how the law will be
applied.”).
74. Id. at r. 3.1.
75. Id. at r. 8.4 cmt. 7.
76. See MODEL CODE OF JUD. CONDUCT (AM. BAR ASS’N 2011).
77. Id. at Preamble ¶ 1.
78. Id.
79. Id. at Canon 1–2.
80. Id. at r. 1.2 cmt. 3.
81. Id. at r. 2.3(B).
82. Id. at r. 2.3 cmt. 3 (“Harassment . . . is verbal or physical conduct that denigrates or showsLIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
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from exhibiting prejudice or bias based upon race, gender, or national origin in
proceedings before the court.83 Examples of proscribed prejudicial manifestations
include suggestions of connections between race, nationality, and crime and other
negative stereotyping.84 Judges may, however, refer to these factors when they are
relevant to the proceeding before the court.85
With these standards of legal ethics in mind, this Article next turns to the
foundations of federal Indian law. As the next Part will demonstrate, federal Indian
law, from its beginnings, has been rife with bias, inaccuracies, and rationalizations
based in white supremacy. This raises serious legal ethical problems.
III.
LEGAL ETHICS AND FEDERAL INDIAN LAW JURISPRUDENCE—THERE MAY BE A
PROBLEM
Federal Indian law is a nonsensically complicated area of the law.86 As this
Part will demonstrate, a major reason for the complexity is that Indian tribes lack
full territorial sovereignty. The reason for this lack of full territorial sovereignty
goes back to racist jurisprudence from nearly two hundred years ago. This
jurisprudence remains the cornerstone of contemporary federal Indian law.
Modern notions of civil rights and racial equality are thoroughly incompatible
with the openly anti-Indian verbiage employed by courts over a century ago.
Nonetheless, present day Indian rights are consistently diminished because long
ago, white men in robes believed Indians were “savages,”87 “heathens,”88 and an
“unfortunate race.”89 Significantly, though the ABA had not devised its ethical
rules when these cases were decided, the judges and attorneys participating in the
hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political
affiliation.”).
83. Id. at r. 2.3(C).
84. Id. at r. 2.3 cmt. 2.
85. Id. at r. 2.3(D).
86. See, e.g., United States v. Lara, 541 U.S. 193, 219 (2004) (Thomas, J., concurring)
(“Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse
federal Indian law and our cases.”); Adam Crepelle, Concealed Carry to Reduce Sexual Violence
Against American Indian Women, 26 KAN. J.L. & PUB. POL’Y 236, 239 (2017) (“Indian country
criminal jurisdiction is a bewildering mess.”); Morgan, supra note 14, at 118–19 (“Federal Indian
law is complicated.”).
87. Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 590 (1823) (“But the tribes of Indians
inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was
drawn chiefly from the forest.”).
88. Id. at 577 (“[N]otwithstanding the occupancy of the natives, who were heathens, and, at
the same time, admitting the prior title of any Christian people who may have made a previous
discovery.”).
89. United States v. Rogers, 45 U.S. (4 How.) 567, 572 (1846) (stating that the federal
government “has exercised its power over this unfortunate race in the spirit of humanity and
justice”).LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
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cases would have been bound by the long-established ethical duty of truth;90
hence, these opinions likely would have been unethical by legal standards of the
time. This section briefly summarizes six influential federal Indian law opinions
that remain binding law in the United States.
A. Johnson v. M’Intosh: Problematic Perpetuation of Doctrine of Discovery
Though no Indian was a party to the case, Johnson v. M’Intosh is the
foundation of federal Indian law.91 The case was a land dispute. Thomas Johnson,
a member of the Wabash Company, had directly purchased the land from the
Piankeshaw and Illinois Indians.92 Johnson had since died, and his heirs claimed
title to the land based on his original purchase. William M’Intosh received a land
grant from the federal government that overlapped Johnson’s land.93 Although the
parties stipulated that their land claims were overlapping, the district court records
demonstrate that in fact the land tracts at issue did not intersect.94 This apparent
lack of a genuine controversy did not prevent the Supreme Court from hearing the
case for the purpose of deciding whether the Indians have ownership rights to their
land.95
Justice Marshall began his opinion by noting the case should be resolved by
not only “those principles of abstract justice” but additionally “those principles
also which our own government has adopted in the particular case, and given us
as the rule for our decision.”96 He then went on to discuss the Doctrine of
Discovery which gave the “discovering” European nation the exclusive right to
acquire land from a country’s indigenous people.97 European nations were
90. See supra Part II.
91. Johnson, 21 U.S. at 543; ROBERT A. WILLIAMS, JR., LIKE A LOADED WEAPON: THE
REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA 51 (2005)
(“The Supreme Court’s unanimous decision in Johnson v. McIntosh, written by Marshall in 1823,
is, without question, the most important Indian rights opinion ever issued by any court of law in the
United States.”).
92. Johnson, 21 U.S. at 571–72; see also Eric Kades, The Dark Side of Efficiency: Johnson v.
M’Intosh and the Expropriation of American Indian Lands, 148 U. PENN. L. REV. 1065, 1083 (2000).
93. Johnson v. M’Intosh: The Power to Grant Land, CONSTITUTIONAL LAW REPORTER,
https://constitutionallawreporter.com/2015/09/01/historicaljohnson-v-mintosh-the-power-to-grant-
land/ [https://perma.cc/YU9N-QZL5] (last visited June 15, 2019) (“William M’Intosh . . . had
obtained the same land from the federal government.”).
94. Kades, supra note 92, at 1092; Dennis J. Whittlesey & Patrick Sullivan, The Foundation
of Indian Law in the United States, INDIAN GAMING LAW, Autumn 2016, at 8, 9. But see MATTHEW
L.M. FLETCHER, FEDERAL INDIAN LAW 27 (2016) (noting that while historians disputed M’Intosh’s
claim to the land, others had come to the conclusion “that there was enough overlap in the claims”).
95. Johnson, 21 U.S. at 572 (“The inquiry, therefore, is, in a great measure, confined to the
power of Indians to give, and of private individuals to receive, a title which can be sustained in the
Courts of this country.”).
96. Id.
97. Id. at 573 (“The exclusion of all other Europeans, necessarily gave to the nation making
the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon
it.”); see generally ROBERT J. MILLER, NATIVE AMERICA, DISCOVERED AND CONQUERED: THOMASLIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
542 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 44:529
justified in applying the Doctrine of Discovery because “the character and
religion” of the Indians contrasted with “the superior genius of Europe.”98 And if
that was not justification enough, Justice Marshall noted that European nations
believed that they “made ample compensation to the inhabitants of the new
[world], by bestowing on them civilization and Christianity.”99 Indian inferiority
meant that it was necessary to impair their rights;100 thus, the sole land right of the
“heathens” was occupancy.101 Justice Marshall concluded that the United States,
as successor to Great Britain, unequivocally acquired title to all lands within its
borders through its treaty with Great Britain.102 Therefore, Justice Marshall ruled
American Indians lacked absolute title and thus could not freely alienate their
land.103
In addition to the Doctrine of Discovery, Justice Marshall offered additional
analysis on why Indians should not be allowed to own their land. He did not decide
whether, on abstract principles, “agriculturists, merchants, and manufacturers”
might have a right to expel “hunters” from their land.104 However, Justice
Marshall’s acknowledgment of this argument reflects a view that the Indians were
stuck in the hunter-gatherer state of society; as Justice Marshall claimed, “[t]o
leave them in possession of their country, was to leave the country a
wilderness.”105 This, of course, was false, and Justice Marshall knew it. Justice
Marshall was an educated Virginian, so he certainly would have known the
Indians in the area were adroit farmers.106
JEFFERSON, LEWIS AND CLARK, AND MANIFEST DESTINY 1 (2006) (“The Doctrine provided, under
established international law, that newly arrived Europeans immediately and automatically acquired
property rights in native lands and gained governmental, political, and commercial rights over the
inhabitants without the knowledge nor the consent of the indigenous peoples.”).
98. Johnson, 21 U.S. at 573.
99. Id.
100. Id. at 574.
101. Id. at 576–77.
102. Id. at 584–85.
103. Id. at 588, 593 (“All our institutions recognise the absolute title of the crown, subject
only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that
right. This is incompatible with an absolute and complete title in the Indians.”).
104. Id. at 588.
105. Id. at 590.
106. Crepelle & Block, supra note 14, at 336; Allison M. Dussias, Squaw Drudges, Farm
Wives, and the Dann Sisters’ Last Stand: American Indian Women’s Resistance to Domestication
and the Denial of Their Property Rights, 77 N.C. L. REV. 637, 640 (1999) (“Chief Justice Marshall
ignored the fact that for centuries, many tribes had indeed engaged in settled agriculture . . . .”);
Mary Kathryn Nagle, Standing Bear v. Crook: The Case for Equality Under Waaxe’s Law, 45
CREIGHTON L. REV. 455, 465 (2012) (noting Justice Marshall’s assertion that Indians were not
farmers in Johnson v. M’Intosh “is ironic, since the very first English settlers to arrive on the
continent relied on Native American harvests to survive—and would have starved to death but for
their ability to eat the crops grown by Native Americans.”); see also Bethany R. Berger, Red: Racism
and the American Indian, 56 UCLA L. REV. 591, 607 (2009).LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
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Justice Marshall further contended that the indigenous occupants of the
Americas were warlike.107 According to Marshall, the Indians “were fierce
savages,” and moreover, because they “were as brave and as high spirited as they
were fierce, and were ready to repel by arms every attempt on their independence,”
coexistence with the civilized whites would be impossible.108 Justice Marshall
said that conflicts between the civilized and the savages were inevitable; hence,
whites residing in proximity with Indians were under “the perpetual hazard of
being massacred.”109 However, he conceded whites were at times the
antagonists.110 The reality is that Indians in what would be become the eastern
United States often welcomed Europeans.111
Factual errors and flagrant racism have not stopped Johnson v. M’Intosh from
becoming one of the most influential cases in Supreme Court history.112 The case
remains binding law,113 and all land tenure in the United States can be traced
directly to it.114 Moreover, the current trust status of Indian land is a direct
consequence of Johnson v. M’Intosh.115 Trust land, in particular the bureaucracy
that encumbers it, is a major reason that American Indians are the poorest people
in the United States.116 Even the unapologetically ethnocentric Doctrine of
107. Johnson, 21 U.S. at 586 (“The ceded territory was occupied by numerous and warlike
tribes of Indians[.]”).
108. Id. at 590.
109. Id.
110. Id. (“Frequent and bloody wars, in which the whites were not always the aggressors,
unavoidably ensued.”).
111. E.g., ROBERT M. UTLEY & WILCOMB E. WASHBURN, INDIAN WARS 15 (2002)
(“Powhatan’s Indians not only permitted the settlement to survive, but actually helped the English
during the first desperate winters.”); Joseph Perillo, Exchange, Contract and Law in the Stone Age,
31, 36–37 ARIZ. L. REV. 17 (1989).
112. William D. Wallace, M’Intosh to Mabo: Sovereignty, Challenges to Sovereignty and
Reassertion of Sovereign Interests, 5 CHI.-KENT J. INT’L & COMP. L. (2005) (surveying multiple
settler-states that have followed a similar framework to Johnson v. M’Intosh for the foundations of
their land tenure systems); Blake A. Watson, The Impact of the American Doctrine of Discovery on
Native Land Rights in Australia, Canada, and New Zealand, 34 SEATTLE U. L. REV. 507, 508–09
(2011).
113. E.g., Oneida Indian Nation v. Phillips, 360 F. Supp. 3d 122 (N.D.N.Y. 2018); Pueblo of
Jemez v. United States, 350 F. Supp. 3d 1052 (D.N.M. 2018); People ex rel. Becerra v. Huber, 244
Cal. Rptr. 3d 79 (Cal. Ct. App. 2019).
114. Kenneth H. Bobroff, Indian Law in Property: Johnson v. M’Intosh and Beyond, 37
TULSA L. REV. 521, 521 (2001) (“Johnson v. M’Intosh, is at the root of title for most real property in
the United States.”); Kades, supra note 92, at 1096 (“Marshall, then, created a rather strange two-
tiered land tenure system: Indian title of occupancy applied before American purchase or conquest,
and the common law of the several states applied after.”); see Carol M. Rose, Left Brain, Right Brain
and History in the New Law and Economics of Property, 79 OR. L. REV. 479, 485 (2000).
115. Mickale Carter, Regulatory Jurisdiction on Indian Reservations in Montana, 5 PUB.
LAND L. REV. 147, 149, 151 (1984); Crepelle, Decolonizing Reservation Economies, supra note 14,
at 424–26; BrieAnn West, Mediating Our Future: The Role of the Land Buy-Back Program in
Rebuilding Confidence and Strengthening Trust Between Tribal Nations and the United States
Government, 35 J. NAT’L ASS’N ADMIN. L. JUDGES 481, 502–03 (2015).
116. Crepelle, Decolonizing Reservation Economies, supra note 14, at 443–44; Morgan,LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
544 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 44:529
Discovery, which was adopted in M’Intosh, was cited explicitly by the Supreme
Court as recently as 2005 to rule against an Indian tribe.117
B. Cherokee Cases: Diminished Sovereignty and Creation of the “Trust”
Relationship
The first of the two “Cherokee cases” occurred in 1831. The Cherokee Nation
sought to assert its sovereignty as a shield against state encroachment, however,
before the rights of the Cherokee Nation could be decided, the Cherokee had to
establish that the Court had jurisdiction to hear the suit.118 The Cherokee Nation
contended that it constituted a foreign state entitled to original jurisdiction before
the Supreme Court.119 In support of its position, the Cherokee asserted they had
numerous treaties with the United States denominating the Cherokee a nation; the
Cherokee have been self-governing since time immemorial; and the Cherokee
were “aliens,” not American citizens, so they must be foreign.120 Justice Marshall
described this argument as “imposing.”121 In contrast, Georgia made no
argument.122
Justice Marshall concluded the Cherokee were not a foreign state. Instead,
Marshall decreed the Cherokee to be “domestic dependent nations… Meanwhile
they are in a state of pupilage. Their relation to the United States resembles that
of a ward to his guardian.”123 Justice Marshall justified this nomenclature because
the Cherokee “look to our government for protection; rely upon its kindness and
its power; appeal to it for relief to their wants; and address the president as their
great father.”124 Moreover, Justice Marshall claimed the Founding Fathers may
have intentionally excluded tribes in Article III because their understanding was
that, rather than appeal to the courts, the Indian’s “appeal was to the tomahawk,
or to the government.”125 Justice Marshall concluded by pointing out the
Commerce Clause of the Constitution distinguishes “tribes” from both “states”
and “foreign nations” and there would have been no reason for this distinction had
tribes been classed as foreign nations or states.126 Thus, the Cherokee lacked
standing to seek redress for their rights.
supra note 14, at 119; Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property,
Sovereignty, and the Future, 115 MICH. L. REV. 487, 490–91 (2017).
117. City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 203 n.1 (2005).
118. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15 (1831).
119. Id. at 15–16.
120. Id. at 16.
121. Id.
122. Id. at 14.
123. Id. at 17.
124. Id.
125. Id. at 18.
126. Id. at 18–20.LIES, DAMN LIES, AND FEDERAL INDIAN LAW 2/3/21 12:14 PM
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The Cherokee’s fortunes changed a year later. White missionaries entered the
Cherokee Nation to help it resist Georgia’s hostilities.127 Georgia, however, had
enacted a law forbidding white people from residing within the Cherokee Nation
without a license from the state.128 Georgia arrested the unlicensed missionaries
within the Cherokee Nation.129 All but two, Samuel Worcester and Elizur Butler,
accepted the state’s offer of pardons.130 Now Georgia’s transgressions against the
Cherokee could be legally challenged because Worcester and Butler were white
men—the Court had jurisdiction.131 Many believed that Justice Marshall’s true
sympathies lay with the Cherokee Nation, and now provided with the chance to
hear the matter on the merits, he ruled in favor of the tribe.132 Justice Marshall
declared:
The Cherokee nation, then, is a distinct community occupying its
own territory, with boundaries accurately described, in which the
laws of Georgia can have no force, and which the citizens of
Georgia have no right to enter, but with the assent of the
Cherokees themselves, or in conformity with treaties, and with the
acts of congress.133
Though the Cherokee prevailed in the Court, the reality was very different.
President Jackson allegedly said, “John Marshall has made his decision, now let
him enforce it.”134 Likewise, Georgia disregarded the Court’s decision and kept
Worcester and Butler in jail.135 The Cherokee’s hope of resistance was effectively
over after the case.136 A political faction within the Cherokee Nation signed the
Treaty of New Echota on behalf of the entire Nation that sealed the tribe’s
127. See, e.g., Elizabeth Wrozek, Marker Monday: Dr. Elizur & Esther Butler: Missionaries
to the Cherokees GA. HISTORICAL SOC’Y, https://georgiahistory.com/marker-monday-dr-elizur-
esther-butler-missionaries-to-the-cherokees/ [https://perma.cc/866R-B4SX] (last visited July 3,
2020) (“Dr. Butler and Mr. Worcester were both missionaries working under the American Board
of Commissioners for Foreign Missions who also provided legal and political advice to the Cherokee
Nation in the 1820s and 30s as Georgia waged a campaign for the removal of all Native Americans
from within the State’s claimed borders.”).
128. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 542 (1832).
129. Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 STAN.
L. REV. 500, 519–20 (1969).
130. Id. at 520 (“Nine of them accepted pardons, but Worcester and Elizur Butler rejected
offers of freedom in order to get the Cherokees their second day in Court.”).
131. Rennard Strickland, The Tribal Struggle for Indian Sovereignty: The Story of the
Cherokee Cases, in INDIAN LAW STORIES, supra note 8, at 61, 72–74.
132. Id. at 70; Burke, The Cherokee Cases, supra note 129, at 510.
133. Worcester, 31 U.S. at 561.
134. Burke, The Cherokee Cases, supra note 129, at 524–25.
135. Strickland, The Tribal Struggle, supra note 131, at 76.
136. Id. at 77 (In a letter, Samuel Worcester said, “There was no longer any hope, by our
perseverance of securing the rights of the Cherokees, or preserving the faith of our country.”).You can also read
